Jackson Defense Alleges Misconduct by Prosecutors

Santa Barbara County prosecutors bullied some grand jury witnesses and argued with others while allowing one to refer to Michael Jackson as “the devil,” the pop star’s attorneys contended in court papers released Wednesday.

Only 47 pages of a 126-page motion to dismiss Jackson’s indictment because of alleged prosecutorial misconduct were released by Superior Court Judge Rodney S. Melville. Over protests by media groups, most of the document has been sealed, along with the response to it by the district attorney’s office.

Even so, the portion made public offers a rare glimpse of the defense in a case in which dozens of search warrants, the grand jury’s 1,800-page transcript and details of the accusations against Jackson have remained secret.

“It sounds as if the case will be acrimonious and personal and not pretty,” said Robert F. Landheer, a criminal defense attorney in Santa Barbara.

Jackson was indicted in April for allegedly molesting a 12-year-old boy and allegedly taking part in a conspiracy involving child abduction, false imprisonment and extortion. He has pleaded not guilty.

Led by Los Angeles attorney Thomas A. Mesereau, the defense team took on Dist. Atty. Tom Sneddon personally in its motion, which is to be argued in a hearing Friday. The defense cast him as arrogant and unprincipled, eager to convict Jackson at any cost. In the document, the defense questioned why Sneddon allegedly picked on certain witnesses.

“The court will never know what caused this behavior,” the motion states in a footnote. “The fact that this is a career opportunity to indict a famous celebrity, the fact that Mr. Sneddon had been boastful in the media months earlier, the fact that Mr. Sneddon has been embarrassed by criticism in the media ... the fact that some of the [grand jury] witnesses had also gone on television to criticize the investigation.”

Such attacks are rare in legal filings and can backfire, experts said.

“This appears written not solely for the edification of the judge but for a broader audience,” said Michael McMahon, a former longtime Santa Barbara public defender who now works in Ventura County. “If you beat a judge over the head with inferences, he can become protective of the attorney under attack. To speculate about an attorney’s motivations is open to question.”

Although some of the rhetoric is unusual, the motion is not. Known as a “995 motion” after a section of the state’s penal code, it is a standard response to grand jury indictments and seldom succeeds in getting them dismissed, said Gerald Uelmen, a Santa Clara University law professor.

In the Jackson 995 motion, about 80 pages that deal directly with the molestation charges and their investigation remain sealed. In a table of contents provided by defense attorneys, such topics are included in a section labeled “The So-Called Facts Presented to the Grand Jury.”

In the portion of the document that was unsealed, defense attorneys lambasted Sneddon and his deputy prosecutors for an “abuse of power” that they said was unprecedented in state judicial history.

They contended that the conspiracy charge against Jackson and others, who have not been publicly identified, was fabricated and that testimony about it before grand jurors was based on innuendo. They also alleged that prosecutors swamped grand jurors with irrelevant and inflammatory evidence “that poisoned the entire proceeding.”

In particular, they pointed to two witnesses who testified on the first day of the grand jury’s meeting about a 1993 lawsuit against Jackson by a boy he allegedly molested. The defense attorneys maintained the 11-year-old lawsuit, which was subsequently settled, was off-limits for the grand jury and was raised by prosecutors to unfairly tarnish Jackson.

The motion also took prosecutors to task for allegedly running roughshod over standard legal practice and asking questions that never would be allowed in court.

The motion included dozens of purportedly argumentative exchanges, such as when a prosecutor at one point said, “OK. Now you didn’t answer my question. So I’m going to ask it again. We’ll just stay here till you answer it, OK. It’s a simple question. I’m going to get an answer.”

Although grand juries are supposed to be impartial investigative bodies, legal experts have long observed that they are usually led to their conclusions by aggressive district attorneys.

Even so, “It’s quite rare that an indictment could be dismissed for the misconduct of prosecutors or the way questions are presented,” said Uelmen, one of the “Dream Team” attorneys in the O.J. Simpson case.

Although prosecutors in the Jackson case allegedly intimidated some witnesses, they allowed others to disparage him “with impassioned and prejudicial remarks,” according to the defense motion.

A woman whose name was blotted out of the motion was told by a prosecutor that “perhaps the biggest and most vicious accusation is that you made all this up.”

In response, according to the motion, “she stated that she didn’t want to take ‘the devil’s money.’

“The prosecutor asked if she was ‘clear about that.’ She stated that Mr. Jackson is ‘the devil.’ ”